State v. Cody

• Docket Number: E2022-00947-CCA-R3-CD
• Decision Date: 28 December 2023
• Parties: STATE OF TENNESSEE v. ROBERT L. CODY, III
• Court: Tennessee Court of Criminal Appeals

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STATE OF TENNESSEE
v.
ROBERT L. CODY, III

No. E2022-00947-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

December 28, 2023

Session September 26, 2023 ^[1]

Appeal from the Criminal Court for Knox County No. 114935 Kyle A. Hixson, Criminal Court Judge

Defendant, Robert L. Cody, III, was convicted of conspiracy to possess 26 grams or more of cocaine with intent to sell within 1,000 feet of a drug-free zone (count one); possession of a firearm with intent to go armed during the commission of a dangerous felony (count two); possession of a firearm by a convicted felon (count three); and the jury found that Defendant committed a criminal gang offense (count ten) enhancing count one to a Class A felony. The trial court imposed an effective thirty-three year sentence to be served in the Department of Correction. On appeal, Defendant argues: (1) that the trial court erred by denying his motion to dismiss counts two and three for failure to charge an offense, and count ten of the presentment for failure to give proper notice of the gang enhancement; (2) that the trial court erred by failing to declare a mistrial after the State read the presentment to the jury; (3) that the trial court erred by excluding Investigator Jinks from the Rule of Sequestration; (4) that the trial court erred by admitting text messages that were not properly authenticated; (5) that the evidence was insufficient to support Defendant's drug conspiracy conviction in count one; (6) that the criminal gang enhancement violated double jeopardy and the doctrine of collateral estoppel; (7) that the trial court erred in sentencing Defendant under the prior version of the Drug-Free Zone Act; and (8) that this court should resentence Defendant under the 2022 amendments to the Drug-Free Zone Act. Following our review of the entire record, oral arguments, and the parties' briefs, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

Jackson Fenner, Knoxville, Tennessee, for the appellant, Robert L. Cody, III.

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Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Charme Allen, District Attorney General; and TaKisha Fitzgerald and Larry Dillon, Assistant District Attorneys General, for the appellee, State of Tennessee.

JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT H. MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

OPINION

JILL BARTEE AYERS, JUDGE

Factual and Procedural Background

This case relates to a criminal investigation involving three residential searches and one traffic stop resulting in the recovery of drugs, drug paraphernalia, currency, weapons and ammunition. Defendant, along with co-defendants Raffell "Satti Ru" Griffin, Sidarius "Rick" Jackson, Decosio "Cozy" Clark, Thakelyn "Earz" Tate, Zephaniah "Zeph" Nyane, Terry "Tree Top" Thomas, Charles "Carolina" Arnold, Robert Crowe, Lola "Kisha" Garrett, and Tony Smith were charged in a twelve-count presentment for crimes committed in furtherance of a drug conspiracy occurring between September 1, 2017, and September 30, 2018. Specifically, Defendant was charged with conspiracy to possess 26 grams or more of cocaine with intent to sell or deliver within 1,000 feet of a drug-free zone (count one), employment of a firearm during the commission of a dangerous felony (count two), engaging in an enterprise of racketeering activity (counts four and five), and that the conspiracy charge was subject to the criminal gang enhancement statute (count ten). The two racketeering counts were dismissed prior to trial.

Trial

Charles Arnold testified that he lived in the Walter P. Taylor Homes from 2013 until 2017, and developed an addiction to crack cocaine. At some point, Defendant approached Mr. Arnold and asked to use his apartment to sell drugs, and Mr. Arnold agreed. Mr. Arnold testified that he received "maybe a gram or two" of cocaine daily in exchange for allowing Defendant to use his apartment. Mr. Arnold testified that this went on for approximately six months until police came and searched his apartment in September of 2017. Investigators found .44 grams of crack cocaine on a plate with a razor blade, and drug paraphernalia consisting of plates, razor blades, a "pot smoking device," sandwich bags, and multiple scales, including one scale that was sitting on the microwave. They also found a .22 caliber pistol and several boxes of ammunition for other types of guns. Mr. Arnold denied that any of the items belonged to him.

Mr. Arnold testified that police came back to his apartment a second time on December 12, 2017, and found additional drugs, drug paraphernalia, guns, ammunition, and money which again did not belong to him. This included a rifle in a closet with a fully loaded drum magazine, along with a bag that could hold up to fifty rounds of bullets. There were scales, a "pot smoking device," and forms of identification lying on a table. On another table in front of the television, investigators discovered a fully loaded Taurus nine-

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millimeter pistol, a large stack of cash, scales, and 29.13 grams of powder cocaine. There was additional cash and a plate with a razor blade on the floor. Police photographed several people inside the apartment, including one man who was sitting in front of a table with marijuana on it. There were live rounds of ammunition and a box of ammunition inside of a large bag. A dresser drawer contained a box of sandwich bags, a plastic bag with 33.41 grams of crack cocaine, and razor blades. There were also measuring utensils and a whisk in the kitchen.

Mr. Arnold said that Defendant and Mr. Tate were selling drugs out of the apartment when the two searches were conducted. He acknowledged that he was arrested in this case and received a plea offer from the State for misdemeanor simple possession.

Officer Clayton Madison of the Knoxville Police Department ("KPD") testified that on January 18, 2018, he was looking for co-defendants Decasio Clark and Sidarious Jackson on Dry Gap Pike in Knoxville. He and other officers pulled over a vehicle in which Mr. Clark and Mr. Jackson were passengers; two other individuals were also in the vehicle. Officer Madison testified that two backpacks were found in the vehicle, both containing handguns. He also saw "other firearms." The officers recovered 76.12 grams of powder cocaine, 4.57 grams of crack cocaine, and digital scales from the vehicle. Investigators interviewed Mr. Clark and Mr. Jackson and searched their cell phones.

Investigator Diondre Jackson of the KPD Organized Crime Unit and Narcotics, testified that he was familiar with co-defendant Zephaniah Nyane, who was on state probation and lived on Louise Avenue. On May 15, 2018, Investigator Jackson and his partner conducted a probation/parole search at Mr. Nyane's residence. They recovered a cell phone, an assault rifle, and several types of ammunition.

Robert Crowe testified that he had lived at his residence on Louise Avenue for thirty years with his wife until she passed away in 2014. He knew Defendant as "Ville." Mr. Crowe testified that he began using cocaine when his wife got sick because he was "trying to relax or whatever you want to call it." After his wife died, Mr. Crowe met Lola Garrett, and she, along with Tony Smith, eventually moved in with him.

Mr. Crowe testified that he met Defendant when Ms. Garrett asked if Defendant could "come by and post up." He thought that Defendant would be there for one day, "but it went on 24/7." He said that Defendant was "all over. He just took over." Mr. Crowe testified that Defendant sat at the table and sold cocaine and marijuana out of Mr. Crowe's house, "and if we'd run out [of cocaine] he would go to the microwave and cook it." He noted that this occurred daily, and Defendant would break off a piece of the cocaine for Mr. Crowe, usually worth approximately fifty dollars. Mr. Crowe testified that Ms. Garrett and Mr. Smith, along with Thakelyn Tate and Sidarius Jackson, also sold drugs from his home. He said that Defendant gave all three of them packs of cocaine to sell. Mr. Crowe

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noted that his role was to sit by the door and direct the people coming to purchase drugs to Defendant.

Mr. Crowe testified that police searched his house in June of 2018 and took photographs. He was also charged with conspiracy, and he received an offer to plead guilty to simple possession. Mr. Crowe testified that he observed guns in his house daily and that Defendant always had a nine-millimeter handgun on the table while he was selling drugs. Mr. Crowe testified that Mr. Tate also had a gun and that on one occasion, someone "shot up" Mr. Crowe's house, and Mr. Tate returned fire through the door. He agreed that the guns were used to protect the drugs.

Lola Garrett testified that she became addicted to crack cocaine as a teenager and met Defendant at the Walter P. Taylor Homes; she knew him as "Ville." She moved in with Mr. Crowe on Louise Avenue at some point, and she also met Tony Smith in the neighborhood. Ms. Garrett testified that she saw Defendant on the street one day, and he asked her about selling crack cocaine out of Mr. Crowe's residence. She said that she and Mr. Smith sold crack and that she saw Defendant cook the crack cocaine there and sell it. Ms. Garrett testified that Mr. Jackson, Mr. Clark, "Ralph," Mr. Tate, and Mr. Nyane also sold crack cocaine out of Mr. Crowe's house. However, when Defendant was there, "everybody came to him." Ms. Garrett testified that she saw firearms lying on tables in the residence, and she thought there had been three drive-by shootings there. She was present during one of the shootings and thought it occurred before she was taken to jail in May of 2018. Ms. Garrett also identified photographs of several other individuals whom she had seen selling crack cocaine...